Case 2:21-cv-00179-MV-GBW Document 7 Filed 03/04/21 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

ISAAC LEGARETTA,
and JOHN or JANE DOES 1-20,

Plaintiff,
Case No. 21-cv-179 MV/GBW
vs.

FERNANDO MACIAS, Dona Ana County

Manager, DIRECTOR BRYAN BAKER, an
0fficial with the Dona Ana County Detention
Center, CAPTAIN BEN MENDOZA, an official
with the Dona Ana County Detention Center,
CAPTAIN JOSHUA FLEMING, an official with
the Dona Ana County Detention Center, and JOHN
Or JANE DOES 1-20,

Defendants.

ORDER

THIS MATTER comes before the Court on Plaintiff Isaac Legaretta’s Complaint for

Injunctive and Declaratory Relief. Doc. 1. Although Plaintiff did not file a separate motion

requesting emergency relief, the Complaint requests, inter alia, that the Court “[e]nter an

immediate TRO and a preliminary injunction enjoining the Defendants from terminating,

demoting, or taking any negative action against Plaintiff for refusing to take a non-mandatory

unapproved vaccine.” Id. at 9. The Court finds it appropriate to set an expedited briefing schedule

on this request, rather than issue an emergency order on an ex parte basis.

Plaintiff, who is an employee at the Dona Ana County Detention Center, alleges that

County Manager Fernando Macias issued a Mandatory COVID-19 Vaccine Directive (the

“Directive”), requiring first responders to receive a COVID-19 vaccination as a condition of

ongoing employment. Id. ¶ 3. According to Plaintiff, the Directive “is in direct violation” of
 Case 2:21-cv-00179-MV-GBW Document 7 Filed 03/04/21 Page 2 of 3

federal law, specifically 21 U.S.C. § 360bbb-3, entitled “Authorization for medical products for

use in emergencies,” and thus is preempted by federal law. Id. ¶¶ 6, 12-13. On this basis, Plaintiff

seeks a declaratory judgment that the Directive is preempted by § 360bbb-3. Id. ¶ 14. Plaintiff

further alleges that he is in “imminent danger” of being terminated from his job for refusing to be

vaccinated, which termination would be a violation of his constitutional rights under the

Fourteenth Amendment. Id. ¶¶ 5, 15-20. On this basis, Plaintiff seeks an injunction preventing

his termination or, if he has already been terminated, requiring Defendants to reinstate him. Id. ¶¶

21-22.

This Court is authorized to issue a temporary restraining order “without written or oral

notice to the adverse party or its attorney” only if two conditions are met: (1) “specific facts in an

affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or

damage will result to the movant before the adverse party can be heard in opposition” and (2) “the

movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should

not be required.” Fed. R. Civ. P. 65(b)(1). Here, Plaintiff’s attorney did not certify in writing any

efforts to give notice or the reasons why notice should not be required. There is no record on the

docket that Defendants have so far been served. Nor would Plaintiff’s service alone satisfy the

requirements of Rule 65(b)(1). Further, as Plaintiff has not been terminated and as a result of his

refusal to take the vaccine has received only a “Coaching/Counseling Acknowledgement,” which

specifically states that “coaching/mentoring is not considered a form of discipline and is solely

used as a tool for performance management,” see Doc. 1 Ex. B, the Court finds that the facts

alleged by Plaintiff do not clearly show that immediate and irreparable injury, loss, or damage will

result to Plaintiff before Defendants can be heard in opposition. The Court thus finds no grounds

to issue an order without providing Defendants with an opportunity to respond. It will, however,

order an expedited briefing schedule on Plaintiff’s Motion.

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IT IS THEREFORE ORDERED that:

1. Plaintiff must effect service of a copy of this Order, together with the Complaint [Doc. 1], and
any attachments thereto, to be received by Defendants no later than 5:00 p.m. Mountain
Standard Time (MST) on Thursday, March 4, 2021, notwithstanding any previous attempts
made by Plaintiff to serve Defendants. Proof of any service done pursuant to this Order shall
be filed with the Clerk of Court as soon as practicable.

2. If Defendants oppose Plaintiff’s Motion, a written response shall be filed with the Court and
served on Plaintiff no later than Monday, March 15, 2021 at 5:00 p.m.

3. Plaintiff’s reply, if any, shall be filed with the Court and served on Defendants no later than
Friday, March 19, 2021 at 5:00 p.m.

4. The Court will set a hearing on this matter if it finds that such a hearing is necessary.

DATED this 4th day of March 2021.

MARTHA VÁZQUEZ
United States District Judge